The present appeal
8 It is I think clear that the notice of appeal to the Federal Court, filed by the appellant on 24 March 2005, did not distil or isolate specifically, or at all, any error of law on the part of Scarlett FM. It was framed in not dissimilar terms to the application filed by the appellant in the Federal Magistrate's Court. I have attached to these reasons for ease of reference a copy of that notice of appeal filed in the Federal Court, which has been redacted in part to ensure the suppression of the identity of the appellant in accordance with s 91X of the Act.
9 In support of the purported grounds of appeal set out in the notice of appeal to this Court, the appellant provided to the Federal Court so-called 'Applicant's Written Submissions', a copy of which is also attached so that at least their format may be observed. The Minister had not been provided with a copy of those submissions. The similarity of those written submissions, both in format and content, to those provided below to the Federal Magistrate, is readily apparent.
10 The appellant explained to the Federal Court at the commencement of the hearing of the appeal, through the Court's interpreter Ms Maharaj, in response to my question '[w]hat is the error of law that you say was committed by the Federal Magistrate?', the following:
'I present my written submissions, your Honour… I had given (sic) to my agent and he said he has provided a copy'
he then repeated:
'I have given my written submissions to my agent and he said he has provided the copies.'
When I asked the appellant what was his agent's name, he replied 'Mollah', and that such person's office was situate in King Street, Mascot, though he could not remember the street number. The following further dialogue then ensued:
'His Honour: Did Mr Mollah assist you in connection with your case in front of the Federal Magistrate?
The Interpreter: At that time he didn't, but he was supposed to help me with this one.
His Honour: I see, thank you. Well now, Mr SZDQO, is there anything that you wish to - and I appreciate that you are not a legally qualified person. Do I take it that all that you wish to say is set out in these written submissions that Mr Mollah has prepared?
The Interpreter: Yes. And you can give your decision your Honour, based on that.
His Honour: Yes, thank you. There is nothing you wish to add to then?
The Interpreter: Nothing.'
11 Counsel for the Minister then indicated that no such material had been provided to the Minister, and I therefore caused copies to be made and provided to him. Counsel also informed the Court that copies of the Minister's written submissions to the Court had been sent by courier to the appellant's address, which the appellant thereupon acknowledged to the Court. The case was then adjourned to enable counsel for the Minister to read the appellant's written submissions.
12 Counsel for the Minister made the following submissions in relation to the grounds of appeal contained in the attached notice of appeal:
(i) the first ground of appeal was difficult to understand in any meaningful way, absent particularisation, and was so broad as to be virtually meaningless;
(ii) Scarlett FM correctly distinguished the operation of the High Court's decision in Muin on its facts;
(iii) the mere citation of Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 did nothing to assist the appellant, who had in any event failed to demonstrate that the decision of the Tribunal was vitiated by jurisdictional error;
(iv) the decision of this Court in SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74 was merely one which applied Plaintiff S157; any remission of the appeal to Scarlett FM for further hearing could not be justified and could not advance the appellant's case.
Counsel then continued:
(v) the real issue before Scarlett FM was whether the Departmental notice of the rescheduled hearing was given according to law. Scarlett FM so held that it was, and correctly so;
(vi) the notice of the Tribunal hearing was sent by registered post to the appellant on 9 January 2004 at the only address made available by the appellant to the Department, and was deemed to have been received by the appellant pursuant to s 441C(4)(a) of the Act after 7 working days;the period of 14 days prescribed by s 425A(3) would have expired on 3 February 2004, and thus well in advance of the hearing date appointed by the Tribunal for 29 March 2004;
(vii) no formal response to the invitation to hearing was sent by the appellant to the Tribunal;
(viii) although the appellant sent the Tribunal a medical certificate on 26 March 2004, and did not appear on the appointed hearing date of 29 March 2004, the Tribunal would have been entitled to proceed in any event to a hearing pursuant to s 426A of the Act; nevertheless the Tribunal chose to re-schedule a further date for the appellant's appearance, pursuant to s 426A(2) of the Act, for 8 April 2004, and so notified the appellant by express post on 30 March 2004; and
(ix) section 426A(2) expressly recognised that although a right to proceed without taking any further action pursuant to s 426A(1) had arisen, so much did not preclude the Tribunal from re-scheduling an appearance by the appellant and delaying the making of a decision; on the true construction of the Act, s 425 did not apply to the letter sent on 30 March 2004 which re-scheduled the hearing; the Tribunal had complied with s 425A by sending the original invitation to the hearing on 9 January 2004, and was not required to further comply with that section in the context of re-scheduling the hearing as it did in that case; therefore the appellant was not entitled to be given the prescribed period of notice of 14 days, pursuant to s 425A(3) and Regulation 4.35Dof the Migration Regulations 1994 (Cth) ('the Regulations'), in relation to the re-scheduled hearing date.
13 Aside for the moment the concluding issue raised above, it is unnecessary for me to add anything more in the way of background material other than that each of the appellant's submissions the subject of the preceding sub-paragraphs are plainly correct, and no further observations or reasoning needs to be recorded.
14 As to last sub-paragraph (ix) above, it is first necessary to extract the relevant provisions of the Act:
'Section 425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Section 425A Notice of invitation to appear
(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies - by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.
(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
…
Section 426A Failure of applicant to appear before Tribunal
(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.'
15 Regulation 4.35D, entitled 'Prescribed periods - notice to appear before Tribunal ([Migration] Act, s 425A)', provides as follows:
'For subsection 425A (3) of the Act, the prescribed period:
(a) if the applicant is a detainee - starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 7 days after the day on which the notice is received; or
(b) in any other case - starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received.
Note 1 If the Tribunal gives a person a document by a method specified in section 441A of the Act, the person is taken to have received the document at the time specified in section 441C of the Act in respect of the method.
Note 2 A document given to a person in immigration detention is given in the manner specified in regulation 5.02.'
16 For the purposes of determining when the appellant received his s 425 invitation, s 441C(4)(a) provides that the appellant was deemed to have received the invitation, which was sent by pre-paid post on 9 January 2004 in accordance with s 441A(4), after 7 working days. As counsel for the Minister submitted, there can be no dispute that the invitation to the originally scheduled hearing was received well after the 'prescribed period' had elapsed, as required by s 425A(3). The only issue is whether or not the failure of the Tribunal to accord the appellant the prescribed period of time in respect of its notification of the rescheduled hearing was such as to amount to a jurisdictional error. As I have recorded above, the appellant did not respond to the invitation to the hearing scheduled for 29 March 2005 other than to submit, some three days before, a medical certificate explaining that he would be ineligible to 'work' for a 5 day period, ending on 31 March 2004. When the appellant did not appear at the hearing scheduled for 29 March 2004, the Tribunal determined to reschedule the same on 8 April 2004; that decision was communicated to the appellant by means authorised by s 441A(4) on 30 March 2004. The appellant did not attend the rescheduled hearing, and the Tribunal proceeded to make its decision in his absence.
17 Counsel submitted that on the adjourned hearing day thus scheduled for 29 March 2004 the Tribunal was entitled to make its decision on the review without taking any further steps to enable the appellant to appear before it, and to do so pursuant to s 426A of the Act in the light of the events which happened. Hely J, sitting as a single judge in Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 359, rejected an argument that the refusal of the Tribunal to adjourn a hearing, in circumstances where one of the applicants for review had submitted a medical certificate, amounted to a breach of s 425 of the Act. His Honour referred at [29] to the terms of s 426A(1) and noted in passing (without considering) Wilcox J's citation at [28] of Xiao v Minister for Immigration & Multicultural Affairs [2000] FCA 1472 of Mansfield J's dictum in Hossain v Minister for Immigration & Multicultural Affairs [2000] FCA 842 at [20] to the effect that the expression 'does not appear' in s 426A(1) may require further judicial exposition, in that it may not apply to an applicant who desires to attend but is unable to do so, due for instance to hospitalisation. In any event Hely J did not determine NAHF of 2002 on a statutory basis, finding instead that the Tribunal had failed to accord with the common law requirements of procedural fairness. I would for myself observe that Mansfield J in Hossain rejected the placement of any 'gloss' on s 426A(1) as urged by the appellant there, namely that the Tribunal 'must be satisfied that the visa applicant has abandoned the opportunity to appear to give evidence before [it] can proceed under s 426A' (at [21]). His Honour considered that it is 'a matter of considering the circumstances in which the Tribunal determined to proceed [in the applicant's absence] to assess whether the Tribunal complied with s 425(1) of the Act and s 426A(1) of the Act' (at [22]). The Tribunal did not however purport to proceed in accordance with s 426A(1) on 29 March 2004 in the present context, and the appellant raised no issue with the Tribunal's decision to do so on 8 April 2004.
18 On the plain language of s 426A(2), the Tribunal was empowered in the foregoing circumstances to reschedule the appellant's appearance before it and the issue, as framed by the Minister, is whether or not the requirement of s 425A, at least as to the prescribed period of notice therein stipulated, applied to any notification of the appellant of that rescheduling, at least in circumstances at the instance of the appellant as here occurred. The Minister supported Scarlett FM's finding that the Tribunal complied with ss 425 and 425A in inviting the appellant to the 29 March 2004 hearing in the manner it did. Thus the Minister was not required to 're-comply' with the latter provision in re-scheduling the hearing, meaning thereby that the appellant was not entitled to the 14 days' prescribed period of notice, and the s 441C deeming provisions did not apply. His Honour held that reasonable notice was given by the postage of the letter, by express post, on 30 March 2004 to the appellant.
19 Counsel for the Minister was unable to refer me to any Federal Court authority in which this precise issue has squarely arisen for determination. Counsel did refer me to three decisions however in which not dissimilar issues have arisen.
20 In NBBU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 767, Sackville J sanctioned orders made by consent of the appellant and the Minister whereby the proceeding would be remitted back to the Tribunal. In that instance it was common ground that the Tribunal had complied with s 425A in notifying the appellant of the hearing scheduled for 16 December 2003 by letter dated 28 October 2003; however that hearing date was changed to 18 December 2003 and the appellant was only notified of this by facsimile sent to his authorised recipient on 16 December 2003, the original day scheduled for the hearing. His Honour referred to ss 425 and 425A(3) and reg 4.35D and stated:
'[4] The respondent accepts that non-compliance with the prescribed period constitutes a jurisdictional error. I am satisfied that this error on the part of the RRT is sufficient to justify the consent orders that are embodied in the short minutes of order handed up to me today.'
Counsel for the Minister contended that NBBU turned on a concession made by the Minister in the particular circumstances there subsisting. Because his Honour was not actually passing reasoned judgment, but merely providing his imprimatur to orders drafted by consent, there is no detail of the cause of the rescheduling apparent from the reasons for judgment. Nor is it apparent why the Tribunal saw fit to reschedule the hearing on what was literally a moment's notice. It is also unclear whether the appellant had responded affirmatively or otherwise to the Tribunal's earlier invitation to attend the original hearing. It is I think unlikely that his Honour, by his foregoing observation made in the context of implementing consent orders, implicitly intended to lay down an inflexible principle that the failure of the Tribunal to comply with s 425A(3), when rescheduling a hearing date as distinct from scheduling the original hearing date amounts to jurisdictional error.
21 I was also referred to two decisions of Federal Magistrate Barnes. In SZBAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 790, the applicant attended a hearing before the Tribunal on 28 June 2002, notice of which had been sent by letter dated 14 June 2002. This was the third scheduled hearing allowed to the applicant, the first two of which had both been postponed by the Tribunal at the request of the applicant's migration agent on the ground that the applicant was in ill health. The invitation to the first Tribunal hearing, in SZBAZ, scheduled for 31 May 2002, was made by the Tribunal's letter dated 26 April 2002, which gave more than the prescribed period of notice of the originally scheduled hearing. Referring to the transcript of the Tribunal hearing, Barnes FM observed that the applicant had taken no objection to the notice provided of the third scheduled hearing. Her Honour then went on to make the following comments:
'[28] …From the perspective of the Tribunal the invitation it had extended remained open. This is not a case where the Tribunal itself re-scheduled a hearing and hence might be said to have issued a fresh invitation to which s.425A(3) should apply. Rather the invitation had been properly extended and accepted by the applicant in a response to hearing form. In postponing the hearing at the request of the applicant's adviser the Tribunal was not issuing a fresh invitation for which the specified period of notice would be required. It had met such obligations in the earlier notice of 26 April 2002.
[29] Common sense would suggest that while the s.425A notice requirements apply to an initial invitation and may apply to a hearing rescheduled by the Tribunal, if a hearing date is rescheduled at the request of the applicant (or his adviser) it should not be necessary for the Tribunal to provide a fresh 14 day period of notice as contemplated by 425A(3), provided the obligations under s.425A have been met in relation to the initial invitation. Were it otherwise any delay, even of minutes or hours, at the request of the applicant would give rise to a failure to comply s.425A. Such an interpretation is also consistent with the language of s.425A which is limited to situations where an applicant "is invited to appear before the Tribunal" as distinct from situations where, having been properly invited, the applicant subsequently seeks a rescheduling of his or her appearance before the Tribunal. It is also consistent with the detailed statutory procedure in Division 4 of Part 7 and with the purpose of s.425A(3) to ensure that the applicant is given adequate notice of any scheduled hearing.'